it is received, and will charge the United States with that amount only.

EXCESS REPAYMENTS.

29. Where the amount of the deposit is greater than the cost of the survey, including field and office work, the excess is repayable upon an account to be stated by the surveyor general.

30. The surveyor general will in all cases be careful to express upon the register's township plat the amount deposited by each individual, the cost of survey in the field and office work, and the amount to be refunded in each case.

You are directed to post a copy of this circular in your office, and to take such other steps as you may deem necessary to disseminate the information without incurring the expense of publication in news

papers.

direct to the Commissioner of the General Land Office, and by the same mail an abstract (Form 4-543) should be transmitted to the same address, containing a full description of each certificate inclosed in the registered package (which is to contain no other matter), as follows: No. of certificate, date, assistant treasurer or depositary issuing the same, name of depository and amount deposited (stating whether for field or office work, or both), and description of survey for which deposit is made.

N. C. MCFARLAND, Commissioner.

DEPARTMENT OF THE INTERIOR, Sept. 19, 1883.

APPROVED:

H. M. TELLER, Secretary.

Assignments may be made to one or more persons, and when there are several original parties to, or several assignees of, one certificate, whether the same was issued on account of joint deposits or otherwise, and such certificate is presented in payment for lands to which it is authorized to be applied, the Register and Receiver will make the proper indorsement on the triplicate certificate presented, showing the satisfaction of the pro rata share of each party interested. They will THE FIRST BONA-FIDE MORTGAGE make the same notes respectively on the Register's certificate of purchase and the In the case of Walker vs. Wise, et al., Receiver's original and duplicate receipts. lately decided by the Supreme Court. In 36. When the entire amount of a certi- this case the following are the facts: Bufficate is not satisfied at the same time, the fandeau, on the 18th of April, '77, gave a triplicate should be retained by the Re- mortgage to the plaintiffs upon certain ceiver, and when fully satisfied be sent up land, which mortgage was recorded the as hereafter prescribed. But such certifi- same day. Buffandeau also gave a mortWhere the whole amount deposited is to cates should as far as practicable be satis-gage on the same property on the same be refunded, the surveyor general will re-fied during the current quarter; and in day to the defendants. This mortgage

31. Before transmitting accounts for refunding the excess of deposits over and above the cost of surveys in the field and office work, the surveyor general will indorse on the back of the triplicate certificate of deposit in the possession of the depositor the following: "$ refunded

to
by account transmitted
to the General Land Office with letter
dated
," and will state in the ac-
count that he has made such indorsement.

quire the depositor to surrender the triplicate certificate of deposit, and will transmit it to this office with the account.

32. No provision of law exists for refunding to other than the depositor, nor otherwise than as referred to in the preceding sections.

ASSIGNMENTS.

33. Under section 2403 as amended, certificates of deposits for surveys "may be assigned by indorsement." Assignments of such certificates are therefore not required to be acknowledged before an officer authorized to take acknowledgments, but the same will be recognized when made and presented in accordance with usages governing in cases of ordinary negotiable paper.

order to avoid embarrassment in the set-
tlement of Receivers' accounts, and to en-
able depositors to more readily utilize
their certificates, attention should be par-
tained in Section 21 of this circular.
ticularly directed to the instructions con-

MUST PREVAIL.

was not recorded until April 26th, 1877.
The lower court found these facts, and as
a conclusion of law from them it found
plaintiff's mortgage as a lien prior and
superior to the lien of the mortgage of the
defendants, Wise & Denigan. The Su-
preme Court say:
"We cannot presume

37. The statute specifically provides that certificates when assigned may "be the plantiff's mortgage was first executed received in payment for any public lands and delivered because it was recorded of the United States entered by settlers first, nor does the fact that it was first reunder the pre-emption and homestead laws corded tend to prove its prior execution of the United States, and not otherwise." and delivery." The Court is of the opinion They are, therefore, not receivable in pay- that there is a failure in the finding of the ment for lands sold at public or private facts necessary to a proper determination sale, nor for mineral, desert, coal, or tim- of the case, and therefore it has been sent ber lands, nor for fees and commissions on back for a new trial. The opinion of the homestead entries, nor in any manner Court does not expressly say what the otherwise than as provided by law. facts are which should be found, and which are necessary to a proper determination. But there is no doubt that these facts are -which mortgage was first executed and delivered, and whether the second mortgagees had notice of the first mortgage, noting on the certificates of purchase and and whether their mortgage was taken in receipts the manner of payment. The Re-"good faith and for a valuable consideraceiver in his monthly account-current will tion." We infer that these must be the debit the United States with the amount facts which are required for the proper of such certificates, and in his quarterly determination of the case, because Section accounts will specify each entry made with 1214 of the civil code provides, that these certificates, giving number, date,"every conveyance of real property other amount for which received, by whom and than a lease for a term not exceeding one with whom the deposit was made, and debit the United States with the same.

34. Certificates issued before or subse- REGISTERS' AND RECEIVERS' RETURNS. quent to March 3, 1879, may be assigned; 38. In their monthly cash abstracts the but if issued prior to March 10, 1881, they Register and Receiver will designate the must be transmitted to the General Land entries in which certificates of deposit are Office for an examination as to excess re-used and the balances paid in cash, if any, payments, if any, and for certification as to their genuineness and value, if they do not already bear such certificates, before they can be accepted by the Receiver, who will be governed by the certificate indorsed on or attached to them by this office.

35. Fraudulent certificates of deposit, purporting to have been issued at various United States depositories, having been put upon the market, rendering it possible for innocent parties to be defrauded in their purchase, you will cause the people in your respective districts to be advised of the possibility of such fraudulent issues, and request that all holders of certificates of deposit send them to this office for the purpose of examination and verification; said certificates to be returned to them without delay, with the certificate of this office as to their genuineness attached.

39. After certificates are accepted they should be canceled by writing across the face of each the word "canceled," together with a description of the tract of land sold, date of sale, name of office, and number of entry over the signature of the Receiver.

year, is void as against any subsequent purchaser or mortgagee of the same property or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded.” The term "conveyance" as used in this section embraces any instrument in writing by which any interest in estate is created or mortgaged. The old Supreme Court, in 40. All certificates, whether transmitted 1873, in the case of the Odd Fellows' for examination or as having been accepted Savings Bank vs. Banton et al., decided in payment for lands sold, must be for- that, a mortgage of real property is void warded in a registered package (the latter as against a subsequent mortgage of the once a month), with letter of transmittal, 'same property which was first recorded,

Chas. H. Bartlett et al., Happy Jack Placer. 1061, 1009, 1011, 1029, 122, 1025, 1923, 1030, 1033, 1045, 1047,

Bullion Cons. Mg. Co.. Baltic, Condor and 226, 2247, 2260), 2251, 2253, 2255, 2256, 2258 to 2262 inclusive, Lottie Lodes and three Mill Sites.

COPP'S LAND OWNER

WASHINGTON, D. C., NOVEMBER 15, 1883.

THIS paper furnishes more valuable law informa- THE ANNUAL REPORT OF THE
tion for less money, and is read by more land attor-
neys and real estate dealers, by more homestead,
pre-emption, and other land claimants, and by more
mine owners, engineers, and superintendents, than
any other publication in the United States.

REDINGTON AND HILL.-AS Mr. Hill desires to retire from the land practice, the partnership heretofore subsisting between PRE-EMPTIONS FOR SPECULATIVE PURPOSES. 261 himself and Mr. Redington has been dissolved by mutual consent. Mr. Hill will 261 devote his entire time to his extensive

The report further recommends a total repeal of the timber-culture law, on account of its inherent defects. The same III THE Cedar Key, Florida, Journal states objection the Commissioner finds in the III that 3,850,162 pounds of fruits and vege- operation of the desert-land act, and he III tables, 2,474,606 pounds of fish, 24,124 finds that entries have been largely made turtles, and 633,400 oysters were shipped for speculative purposes, with no intenIV by express from that place during the tion of reclamation. The practical operaiv month ended July 1.

be purchased in large quantities, thus re

TABLE OF CONTENTS

sulting more in the encouragement of As showing the analysis and arrangement of
monopoly than the encouragement of re- Copp's Public Land Laws, and the space given
clamation. The report also says that the to each subject and subdivision. The Table of
timber and stone-land entries act is fla- Contents, condensed, is given below :
grantly violated.

TIMBER LANDS SECURED BY MONOPOLISTS.

PART I.

I. Revised Statutes.

PAGE

Why do you not purchase COPP'S PUBLIC 1 LAND LAWS, as you have intended? One case II. Public Land Commission's Codification. 60 won by the knowledge it imparts will more than III. Land Laws-1875 to 1882.

PART II.

TITLE I.-Practice.

I. Rules of Practice.
II. Instructions and Rulings

"Information is in my possession," the Commissioner says, "that much of the most valuable timber land remaining in the possession of the government on the Pacific coast is being taken up by home and foreign capitalists, through the medium of entries made by persons hired for that purpose. I have found it necessary to suspend all entries of this class, and III. Public Sale Proclamations in Full . direct an investigation."

The Commissioner is of the opinion that timber lands should be reserved by law from ordinary disposal, and sold only after appraisement, and upon settled bids. He recommends that Congress make some legislation in relation to the private land claims in New Mexico, Colorado and Arizona, and recommends that a commission for each of these territories be appointed to examine and settle these claims, with proper appeal for review upon error of law.

LAND GRANT RAILROADS.

The construction of 1,210 miles of land grant railroad was reported during the year, making a total of 17,449 miles of road reported as constructed under all grants to June 30, 1883. The question of declaring a forfeiture of these grants where the railroads have not been constructed in the prescribed time is deemed an appropriate one for legislation.

A NEW BUILDING AND MORE CLERKS
NEEDED.

The Commissioner recommends that a building be erected for the use of the land office and its records. He asks. an additional force of two hundred clerks of the higher grades, and suggests that a grade of examiners of land titles corresponding to the grade of principal examiner in the Pension Office would be extremely desirable.

176

pay for the work.

193

203

TITLE II.-Public Sales and Private Entries.
I. General Circular.

247

II. List of Public Notices-1874-1882.

TITLE III.-Homesteads.

I. In General.

a. Application and Entry
b. Adjoining Farm Entry.
c. Additional Entries

d. Residence and Cultivation

330
332

PRACTICE.

H. R. VAUGHN.

COMMISSIONER MCFARLAND to H. R. Vaughn, Pembina, Dakota, Oct. 1, 1883. (S. W.S.) An attorney, disbarred from practice before this and district land offices, is not thereby prevented from exercising the duties of Notary Public, and such fact of 358 itself does not in any way effect affidavits 393 taken before him as such Notary.

396
406

With his reports of July 16th and Aug. 525 16th, 1883, Special Agent C. W. Sanborn 528 forwarded a diagram of tracts in your district deemed by him upon examination to be coal lands. These tracts are in Town529 ships numbered 35 South of Range 61 540 West, 34 and 35 South of Range 62 West, 33 and 34 South of Range 63 West, and 31 to 34 South inclusive of Ranges 64 and 65 West. I enclose a copy of the diagram 628 for your information and guidance. You are instructed to note in pencil, opposite each section mentioned in your tract books, the fact that the land has been reported as coal land, making proper references to this letter.

593
601
613
622

641

649
685

714 815 824

858

893

V. Versus Pre-emptions.
VI. Versus Miscellaneous Adverse Claims. 944

TITLE VII-Land Warrants and Private

Scrip

TITLE VIII.-State Selections.
I. Swamp Lands

II. School Lands.

III. Act of July 23, 1866.
IV. In General

In every case of entry (not under the coal land law), for these lands where proof of settlement and cultivation is not required, such as additional homestead entries under the statutes for the benefit of soldiers and sailors, before issuing a certificate as the basis for a patent a hearing must be had to determine the character of the land, after due published notice, ac1034 cording to the method prescribed in the 1103 circulars of this office relating to lands 1142 returned by the Surveyor General as mineral.

974

1112

The report further recommends that the Commissioner's salary be increased to $5000, and that an assistant commissioner be authorized. An increase in the salaries of the principal officers and clerks is deemed expedient, the chief clerk's salary being advanced to $2,500, the law clerk the same, and for his assistant $2.250. He asks for an increase to $2,000 for two ex-III. In New Mexico, Arizona and Colorado. 1271 the land may be had at the date of proof aminers of office decisions, and of the chiefs of divisions to $2,000.

of the land, should be allowed to give testimony and cross-examine witnesses as in contested cases.

make settlement and improvement as a coal land claimant, the company should be permitted to prove up and purchase as asExisting instructions authorizing hear-signee of Carleton, provided it could show ings in some instances as to the character its right to do so. of tracts in respect to the agricultural or mineral value, are modified hereby so far as the lands in question are concerned.

The company applied to purchase as such assignee, and on the 16th of January last the Register and Receiver allowed the entry.

Kerr and Fowler, former contestants also applied on the 5th of January last to purchase and enter the lands covered by their respective claims.

Their applications were rejected by the local office, which action was affirmed by you on the ground that Carleton's filing was not canceled by Departmental decision of December 11th, the finding in that decision being that the company occupied the position of assignee of Carleton, and the effect being to put said company in his place so that by virtue of the assignment it succeeded to all the rights which he had under his filing.

In other words Carleton's filing, being still in esse, and having inured with all his rights thereunder to his assignee, was an appropriation of the lands covered thereby, and consequently the applications of Kerr and Fowler could not be allowed.

You thereupon dismissed their appeal,

and in this your action was undoubtedly

correct.

I have considered the appeal of John W. Kerr et al., from your decision of August 20, 1883, denying their application to purchase and enter certain coal lands in Sec. 4, Tp. 13 N., R. 119 W., Wyoming Territory, A case involving in part the same land was before me on appeal in December last, under the title of John W. Kerr et al., vs. George W. Carleton. As to Carleton's claim, it was contested on the ground that he had failed to comply with the law in the matter of occupancy and improvement, Recurring to the entry of the Utah-Wyhe on the other hand averring that he had, oming Improvement Company, allowed by through the Utah-Wyoming Improvement the Register and Receiver in January last, Company acting as his agent complied with you hold that said allowance was erronethe law in every particular. In deciding that ous. That finding did not have reference case on the 11th of December last, I took to the merits of the case, but resulted simoccasion to say in substance, that from the ply from the fact that the entry had been agreement and contract between Carleton permitted before the expiration of the and the Utah-Wyoming Company, to- thirty days given under the rules for apgether with the collateral evidence relat-peal by opposing parties. Kerr and Fowler ing thereto, it quite clearly appeared not did appeal to you within the thirty days, only that the relation of principal and but having dismissed their appeal you deagent did not exist, but that as a matter cided to allow the company's entry to of fact the evident purpose and effect of stand on the records, and proceed upon its the contract was, as between the parties, merits. a complete transfer by Carleton to the company of his prospective, as well as his then existing rights in the lands claimed under his coal declaratory statement. All the facts, including the acts of Carleton and the company respectively, warranted

this conclusion.

As between Carleton and the Government, however, he, for the purpose of formally completing the transfer to the company, under the contract, by passing to it a fee simple title to the land, still claimed in his own name, and asked that patent be issued to him.

Said entry is opposed and objected to by Kerr et al. on two grounds principally, to wit: First, that the Utah-Wyoming Company has not shown its right to purchase as assignee of Carleton; and, second, that it is not qualified under the law to make the purchase and receive patent.

As to the first objection, as already indicated supra, I decided on the 11th of December last after a careful consideration of all the facts then before me that to all intents and purposes the transaction between Carleton and the Company under the agreement and contract of December Having concluded that the relation be- 20, 1881, amounted to and was in effect a tween him and the company was that of present disposal and assignment of all inassignor and assignee and not that of prin- terests which he (Carleton) had or excipal and agent, and that he had not con- pected to have in the land covered by his tinued to occupy and improve the land coal declaratory statement. I find notheither in person or by agent in such a sense ing to change this view, and in treating as to justify the issuance to him of patent, the case as now before me I must regard I decided that since the weight of evidence the Company as the assignee of Carleton showed that he was in contemplation of under his coal filing.

decision to the effect that the Company will be permitted to prove up and purchase if it can show its right as assignee so to do, must therefore have reference to the qualifications under the law of the individual members of the Company.

and

This brings us to the second objection raised, to wit: as to the qualification of the Company to purchase, and this involves the qualifications of its individual members; for, the law (Sec. 2350, Revised Statutes) authorizes "only one entry by the same person or association of persons," and provides among other things that "no association of persons, any member of which shall have taken the benefit of such sections (meaning sections 2347, 2348, 2349 of the Revised Statutes, which provide how and by whom coal lands may be entered), either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof." Other qualifications are mentioned in the law, such as age and citizenship, but counsel for Kerr et al. objects to the patenting of entry made by the Utah-Wyoming Co., as assignee of Carleton, and asks the cancellation of said entry on the ground that the Company is disqualified to enter because three of its former stockholders, viz.: H. A. Van

Praag, Chas. M. Gilberson and E. H. Mur

ray, are interested in other lands claimed under the coal law. It is not charged that

any of these three persons were at the date 16, 1883-members of the Company or of the entry by the Company-January

owners of any of its stock, and it is shown that they were not. Van Praag and Gilberson disposed of their stock June 15, 1882, and Murray sold his one share Jan

uary 4, 1883.

It is claimed, however, that the fact that the three persons mentioned were at the date of the purchase by the company from Carleton, members of said company, was such a defect as could not be cured by their subsequent disposal of their interests; that it was fatal, and precluded the issue of patent to the company.

I do not think this view is sustained by the law.

I am clearly of the opinion that if at the date of entry no single member of a company which applied to make the entry is disqualified by reason of interest in any other land claimed or owned under the coal law, such entry, if there be no other objection, must be regarded as valid, and patent should issue. Your decision on this point is therefore affirmed.

You say in closing your decision that "the proof filed by the company is, however, deficient in several particulars," and you specify one.

I return the papers for your action pursuant to this decision, and also transmit herewith for your consideration, evidence filed by the company since the case left your office, probably for the purpose of remedying the defects to which you relaw the first of the parties in contest to The condition imposed by my former ferred in the language above quoted.